Republic of the Philippines

REGIONAL TRIAL COURT

National Capital Judicial Region
Branch 123
Pasig City

PEOPLE OF THE PHILIPPINES

Plaintiff,

- versus CRIM.CASE NO.12345 H

ROMULO C. TAKAD,
Accused,

x --------------------------------------------- x

DEFENDANTS MEMORANDUM

Defendant, by counsel, respectfully submits its memorandum in

the case:

The Case

Plaintiff, through the Public Prosecutor, filed charges against herein

accused for violation of the Anti Carnapping Act by claiming that the latter,
with intent to gain and without the consent of the plaintiff, stole and drove
away a Kawasaki motorcycle with side car, colored black, bearing plate No. TU
9952, with a value of P 80,000, belonging to the plaintiff.

The Facts

At the trial, the plaintiff presented her own version of facts. She narrated
that she is an account officer of the Bayan Development Corporation (BDC) and
as such, the corporation extends loans to various Tricycle Operators and
Drivers Association (TODA) including the one where the accused was a member
of. She stated that sometime in May 2003, she extended a loan to Ma. Teresa
Lacsamana in the amount of P80,000 as part of a group loan extended to the
TODA and was evidenced by a Kasunduan, a promissory note and a chattel
mortgage. The agreement, according to the above - mentioned documents, was
that the loan would be paid over a period of thirty months. However, Ms.
Lacsamana defaulted in her payment of the loan despite the extension given to
her resulting to the forfeiture and repossession of the tricycle in favor of BDC.
According to the plaintiff, the accused Takad was with Ms. Lacsamana at that
time and when the plaintiff refused the said payment, she heard the accused
saying Huwag na huwag kong makikita ang tricycle sa Pasig. A few days after
the incident, the tricycle was reported stolen by Carlos Parlade along with
several witnesses identifying Takad as the main culprit.

The accused, for his part, told a different side of the story. While
admitting to the fact that Ms. Lacsmana indeed defaulted in her payment of the
loan, the accused belied the contention that the BDC pulled out the tricycle
from Ms. Lacsamana. He contended that he, together with Ms.Lacsamana, were
the ones who brought the said tricycle to the house of Mr. Marasigan, the
treasurer of the TODA, for safekeeping as per agreement contained in the
Kasunduan executed between their group and BDC. Subsequently, BDC took
the tricycle from the treasurer of the group on October 18, 2002 and not on
November 18, 2002 as stated by the plaintiff. The accused also belied the
contention of the plaintiff alleging that he threatened the plaintiff by saying
Huwag na huwag kong makikita ang tricycle sa Pasig. The accused contented
that he has no such intention of threatening the plaintiff. What he meant by
those words is the fact that he does not want Ms. Lacsamana to have hurt
feelings regarding the repossession of the tricycle. He was therefore
misconstrued when he said those words.

The Issues

The Court defined the issues in this case in this case in its pre trial
order as follows:
1. Whether or not the identity of the person of the accused was clearly
established
2. Whether or not there was lawful warrantless arrest.
3. Whether or not the elements of carnapping punished under the Anti
Carnapping Act was proven beyond reasonable doubt
4. Whether or not the terms and conditions of the Kasunduan executed
between the parties was strictly followed
5. Whether or not it was clearly established that it was BDC who actually
owns the tricycle subject of the crime

Arguments
I.
THE IDENTITY OF TAKAD AS THE ACCUSED WAS NOT CLEARLY
ESTABLISHED
A. The police line-up identification of Takad is tainted with
impermissible suggestion, violating the accused due process rights.
The Prosecution claims that it was the accused Takad who took the
tricycle from the residence of Carlos Parlade. It presented several witnesses
who claimed they saw the accused herein as the person who actually took the
tricycle without the consent and against the will of Carlos Parlade. However,
this position does not hold water due to the following contention:
 The eyewitnesses presented by the prosecution did not positively identify
respondent Takad as the person who took the tricycle in question. Rather, it
based its contention that it was Takad who took the tricycle on mere
circumstantial evidence without positive identification as can be gleaned from
the affidavit executed by Carlos Parlade as can be seen below:
Q: Please go over your sworn statement and tell us if you
gave to the police those descriptions of the accused that
you mentioned?
A: I said here, in answer to #14, medyo maigsi ang
buhok
Q: But the other description that he is of light complexion
and has pronounced jaws, did you put that in your
statement?
A: No, sir.
And another in this manner:
Q: You said that you shouted at the man on the tricycle
and he looked but suddenly started the motor and drove
away with the tricycle, is that right?
A: yes,sir
Q: Since the purpose of the man was to flee from you, he
merely glanced back, is that right?
A: Hindi po, opo, medyo matagal po
Q: What is really your answer?
A: Opo
Q: I understand that you went back to the police station
on November 21, at 5:30 in the afternoon?
A: Yes, sir
Q: The police had told you that Takad had been arrested
and you have to come back and identify him, is that
right?
A: Yes, sir
Q: When you went to the police station, they led you into
a room and the investigator pointed out Takad to you, is
that right?
A: Yes, sir
Q: And he asked you if he was the one who took the
tricycle?
A: Yes, sir
Q:In other words, you were not shown the accused
Takad in a police lineup with other persons of the same
built so you could try to pick him out as the tricycle thief?
 A: No, sir.
Thus, there is doubt in the regularity of the identification by Carlos
Parlade of the accused. From his testimony, it is clear that he did not positively
identify the accused-appellant. At the time of the incident, he only made a very
fleeting glance on the person. At that moment, he had an impression that the
accused had a light complexion and a well-built body (Medyo malapad). During
the proceedings in the police station where he was supposed to identify the
assailant, he identified Takad as allegedly the person who stole the motorcycle,
not because he was certain that Takad was really the assailant but because he
was the only person in the station and because he was pointed by the
investigator as their suspect. The fact is that the accused was not identified in
a police line-up, but rather he was directly pointed. From all indications, the
identification of accused-appellant by Carlos Parlade was suggested by the
police and this is objectionable.
As can be gleaned from the case People vs Baconguis, the identification
process was surrounded by circumstances which were clearly tainted by
improper suggestion. While there is no law requiring a police line-up as
essential to a proper identification, as even without it there could still be proper
identification as long as the police did not suggest the identification to the
witness, the police in both cases did even more than suggest to the
complainant. In People vs Baconguis, the Supreme Court held that:
Thus, by Lydia's own account, she arrived at the cell where
appellant was detained. It was the police officer who pointed the
accused and told Lydia that the appellant was the suspect. A
show-up, such as what was undertaken by the police in the
identification of appellant by Lydia, has been held to be an
underhanded mode of identification for "being pointedly suggestive,
generating confidence where there was none, activating visual
imagination, and, all told, subverting their reliability as an
eyewitness." Lydia knew that she was going to identify a suspect,
whose name had priorly been furnished by her brother-policeman,
when she went to the police station. And the police pointed
appellant to her, and told her that he was the suspect, while he
was behind bars, alone. (People vs Baconguis, G.R. No. 149889,
December 2, 2003)
In the case at bar, Carlos Parlade went to the police station for the
purpose of identification after he was informed that the accused was arrested.
He never met Takad previously and he only knew Takad due to Zenny Aguirres
statement that Takad warned Zenny in seeing the tricycle in Pasig.
In People v. Acosta, this Court rejected the identification by a witness of
the accused while the latter was alone in his detention cell. There, this Court
held that the identification of the suspect, which was tainted by the
suggestiveness of having the witness identify him while he was incarcerated
with no one else with him with whom he might be compared by the witness,
was less than objective to thus impair the trustworthiness of their
identification.
The unusual, coarse and highly singular method of identification,
which revolts against accepted principles of scientific crime
detection, alienates the esteem of every just man, and commands
 neither respect nor acceptance. (People v. Cruz, G.R. No. L-24424,
March 30, 1970)
More importantly, the police denied Takad his right to counsel during the
line-up, contrary to Section 12(1) of the Constitution which provides:
Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and
to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must
be provided with one. These rights cannot be waived except in
writing and in the presence of counsel.
In People v. Escordial (G.R. Nos. 138934-35. January 16, 2002), the
Court pertinently ruled:
As a rule, an accused is not entitled to the assistance of counsel in
a police line-up considering that such is usually not a part of the
custodial inquest. However, the cases at bar are different
inasmuch as accused-appellant, having been the focus of attention
by the police after he had been pointed to by a certain Ramie as
the possible perpetrator of the crime, was already under custodial
investigation when these out-of-court identifications were
conducted by the police.
An out-of-court identification of an accused can be made in various
ways. In a show-up, the accused alone is brought face to face with the witness
for identification, while in a police line-up, the suspect is identified by a
witness from a group of persons gathered for that purpose. During custodial
investigation, these types of identification have been recognized as critical
confrontations of the accused by the prosecution which necessitate the
presence of counsel for the accused. This is because the results of these pre-
trial proceedings might well settle the accuseds fate and reduce the trial itself
to a mere formality. The SC have thus ruled that any identification of an
uncounseled accused made in a police line-up, or in a show-up for that matter,
after the start of the custodial investigation is inadmissible as evidence against
him.
As stated in Escordial, generally, an accused is not entitled to the
assistance of counsel in a police line-up considering that such is usually not a
part of custodial investigation. An exception to this rule is when the accused
had been the focus of police attention at the start of the investigation. The line-
up in this case squarely falls under this exception. It was established that
Takad was already a suspect prior to the police line-up. In fact, even before
Takads apprehension, the police had already zeroed in on Takad as the sole
suspect. As such, Takad was entitled to counsel during the police line-up.
In the same manner, Mario Mankas testified that he did not directly
identified Takad as the person who took the tricycle. This can be gleaned from
the following:
Q: You said that the tricycle was running at a very fast
rate. If the driver of the tricycle was driving very fast, you
will agree with me that you only had a brief glance of the
driver. Is that right?
 A: Yes, sir
Q: And apart from the fact that the tricycle was running
at a very fast speed, you could not have seen much of the
person driving it because, as you said in your affidavit,
hindi ko gaanong namukhaan dahil nakayuko ako. Is
that right?
A: Yes, sir.
Q: Now, because you only had a glance of the man
and because your head was bowed down, when you
were asked by the police to describe the man on the
tricycle, you could only describe his built. Is that right?
A: Yes, sir
From the foregoing, none of the witnesses positively identified the Takad
as the person who allegedly stole the tricycle. It is a basic tenet of law that
circumstantial evidence is the weakest form of evidence that can be presented
in court. The only instance that it would prove either the guilt or innocence of
the accused is if the circumstances would clearly point to the accused as the
person who indeed committed the crime. The testimony of the witnesses
presented by the prosecution proved only the fact that there was a lack of
identification with respect to the identity of Takad as the main culprit in the
case. Clearly, mere glances at the person who committed the crime does not
amount to a positive identification of the person.
In People v. Rodrigo (G.R. No. 176159, September 11, 2008), the Court,
speaking thru Justice Arturo Brion, acquitted the accused for failure of the
prosecution to identify the accused as the perpetrator of the crime, which
identification is extremely crucial to the prosecutions burden of proof.
Stressing the importance of a proper identification of the accused, most
especially when the identification is made by a sole witness and the judgment
in the case totally depends on the reliability of the identification, the Court
held:
The greatest care should be taken in considering the identification of the
accused especially, when this identification is made by a sole witness
and the judgment in the case totally depends on the reliability of the
identification. This level of care and circumspection applies with greater
vigor when, as in the present case, the issue goes beyond pure credibility
into constitutional dimensions arising from the due process rights of the
accused.
B. The in-court identification of the accused did not cure the flawed
out-of-court identification.
The in-court identification of the accused was flawed due to the
following: (1) a serious discrepancy exists between the identifying witness
original description and the actual description of the accused; (2) the limited
opportunity on the part of the witness to see the accused before the
commission of the crime;
A. Discrepancy between original description and actual description
 Since in the sinumpaang salaysay of Parlades, he was not able to give a
description of the accused. Thus, there is reasonable doubt as to whether he
identied the accused during the commission of the crime. Now, we will focus on
the statements made by Mario Mankas which are contained in his Sinumpaang
Salaysay.
In his sworn statement, which was executed barely hours after the
commission of the crime, Mario Mankas was able to recall the features of the
suspect; as follows:
Q: You said that the tricycle was running at a very high speed. If the
driver of the tricycle was driving very fast, you will agree to me that
you only had a brief glance of the driver?
A: Yes sir.
Q: And apart from the fact that the tricycle was running very fast,
you could not have seen much of the person driving it, because as
you said in par. 5 of the affidavit, hindi ko gaanong namukhaan
dahil nakayuko ako. Is that right?
A: Yes Sir.
Q: Now because you only had a glance of the man and because your
head was bowed down, when you were asked to describe the man
on the tricycle, you could only describe his built. Is that right?
A: Yes Sir.
XXX
Q: What was abnormal about his body?
A: Medyo maskulado sir.
XXX
Q: What is the difference between the batok of the that man on the
tricycle and the batok of other men?
A: The nape of this man was longer.

However, Takads physical features during the court identification are

nowhere close to Mankas description of being muscular during the time of the
commission of the crime. Thus, considering that Mankas had only a glance of
the man and his head was bowed down, the discrepancy between Mankas
description given before the police and the actual physical appearance of Takad
severely weakens the credibility of Mankas in identifying the real culprit.
B. Limited opportunity for both Parlades and Mankas to see the accused

There is no dispute that Parlades and Mankas do not know the accused. They
saw the person for the first time during the taking of the vehicle and they saw
Takad for the first time during the police-line up. In Rodrigo, the Court
observed:
 This fact can make a lot of difference as human experience tells us:
in the recognition of faces, the mind is more certain when the faces
relate to those already in the minds memory bank; conversely, it is
not easy to recall or identify someone we have met only once or
whose appearance we have not fixed in our mind.
Aside from the fact that both witnesses do not know Takad, both of them saw
the accused very briefly during the taking. In fact, according to Mankas, he
merely had a glance at the accused and his head was bowed down.
There is doubt as to whether the witnesses could accurately remember the
identity of the perpetrator of the crime due to the swiftness by which the crime
was committed and the physical impossibility of memorizing the face of the
perpetrator whom the witnesses saw for the first time and only for a brief
moment due to the use of the motor vehicle to get away quickly.

II
THE POLICE ARREST AND APPREHENSION OF THE ACCUSED VIOLATED
THE ACCUSEDS RIGHTS AGAINST WARRANTLESS ARREST

In the morning of November 21, 2003, Takad was arrested by police

officers, which according to Takad he was just awakened when police officers
arrived at their home. At the time of he has no knowledge of the allegations
against him, because according to him he was just sleeping at the time of the
said incident. He was brought to the police station of Pasig City. Takad was
presented to Mr. Carlos Parlade for identification alone and not with the line-
up of other persons of the same built. Mr. Carlos Parlade confirmed that the
man presented in the police station to be the person who he saw taking his
tricycle.
Assuming that Takad was only invited by the Police officers for
identification purposes only, still, caution must be observed when acceding to
police invitation. No less than our Supreme Court recognized that there are
cases where the invitation is used as a guise to effect a warrantless arrest. This
situation arises when the person invited is suspected and investigated as
perpetrator of the crime and is asked incriminating questions. In one case
where a person went to the police station upon invitation, and later police
officers investigated him for allegedly committing a crime, our Supreme Court
declared that such invitation is equivalent to arrest. It is covered by the
proscription on a warrantless arrest because it is intended for no other reason
than to conduct an investigation (People vs. Olivares, G.R. No. 77865,
December 4, 1998).
Thus, it is highly advisable to ask assistance from a lawyer when
acceding to police invitation in order to ensure that your legal rights are
respected. The same is also intended to protect the person from the inherently
coercive psychological, if not physical, atmosphere of a police investigation
following the arrest of a person (People vs. Rodriguez, G.R. 129211, October 2,
2000).
In the case at bar, Takad was taken to the police station for the main
purpose of asking concerning an alleged crime and for identifying him However,
Takad was already an alleged suspect in the eyes of the Police officers. In fact,
even before Takads apprehension, the police had already zeroed in on Takad
as the sole suspect. Arguing that Takad consented to the arrest and freely went
with the police is misplaced due to the intimidating circumstances and
authority of the police officers.
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a
private person may, without a warrant, arrest a person: (a) When,
in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense; (b)
When an offense has in fact been committed and he has personal
knowledge of facts indicating that the person to be arrested has
committed it; and, (c) When the person to be arrested is a prisoner
who has escaped from penal establishment or place where he is
serving final judgment or temporarily confined while his case is
pending, or has escaped while being transferred from one
confinement to another.
It must be recalled that Takad was taken by the police officers and
brought him to the police station. In People vs Sucro (G.R. No. 93239, March
18, 1991), the SC held that when a police officer sees the offense, although at a
distance, or hears the disturbances created thereby, and proceeds at once to
the scene thereof, he may effect an arrest without a warrant on the basis of
Sec. 5, par. (a), Rule 113, since the offense is deemed committed in his
presence or within his view. In essence, Sec. 5, par. (a), Rule 113, requires that
the accused be caught in flagrante delicto or caught immediately after the
consummation of the act. The arrest of Takad is obviously outside the purview
of the aforequoted rule since he was arrested on the day following the alleged
commission of the offense.
On the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2)
stringent requirements before a warrantless arrest can be effected: (1) an
offense has just been committed; and (2) the person making the arrest has
personal knowledge of facts indicating that the person to be arrested had
committed it. Hence, there must be a large measure of immediacy between the
time the offense was committed and the time of the arrest, and if there was an
appreciable lapse of time between the arrest and the commission of the crime,
a warrant of arrest must be secured. Aside from the sense of immediacy, it is
also mandatory that the person making the arrest must have personal
knowledge of certain facts indicating that the person to be taken into custody
has committed the crime. Again, the arrest of Takad does not comply with
these requirements since, as earlier explained, the arrest came a day after the
consummation of the crime and not immediately thereafter. As such, the crime
had not been "just committed" at the time the accused was arrested. Likewise,
the arresting officers had no personal knowledge of facts indicating that the
person to be arrested had committed the offense since they were not present
and were not actual eyewitnesses to the crime, and they became aware of his
identity only from Zenny Aguirre.
Such warrantless arrest, therefore, amounts to a violation of Section 2,
Article III of the Constitution, which provides:
The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
 whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.
The police investigation work in this case, which led to the unlawful
warrantless arrest of the accused, is unwarranted since they chose to rely
solely on the statement made by Zenny Aguirre that Tatad warned her about
the vehicle being seen in Pasig. Carlos Parlade did not even knew the accused
prior to the incident.
III
THE ELEMENTS OF CARNAPPING AS PUNISHED UNDER THE ANTI
CARNAPPING ACT WAS NOT CLEARLY ESTABLISHED THUS FAILING TO
PROVE THE GUILT OF TAKAD BEYOND REASONABLE DOUBT

Every criminal conviction requires the prosecution to prove two (2)

things: 1. The fact of the crime, i.e. the presence of all the elements of the crime
for which the accused stands charged; and (2) the fact that the accused is the
perpetrator of the crime. It has been discussed in the first argument that the
identity of the accused as the perpetrator of the crime has not been
established. However, assuming arguendo, that the identity has been
established, the elements of the crime imputed still needs to be present which
is clearly missing here. Under Republic Act 10883 otherwise known as the New
Anti Carnapping Act of the Philippines, Carnapping is committed by the
taking, with intent to gain, of a motor vehicle belonging to another without the
latters consent, or by means of violence or intimidation against persons, or by
using force upon things. In People v Lagat (G.R. No. 187044 September 14,
2011) the elements of carnapping are:

1. That there is an actual taking of the vehicle;

2. That the vehicle belongs to a person other than the offender himself;

3. That the taking is without the consent of the owner thereof; or that the
taking was committed by means of violence against or intimidation of
persons, or by using force upon things; and

4. That the offender intends to gain from the taking of the vehicle.
As can be gleaned from the facts of the case, as well as the testimony of the
witnesses, the prosecution failed to establish all the elements of carnapping
which would prove the guilt of the accused. The prosecution failed to establish
proof beyond reasonable doubt of the existence of the all the following elements
as second and fourth element.
There is no unlawful taking of a motor vehicle
Regarding the second element, based on the Kasunduan entered into by
and between the TODA and BDC, the ownership of the tricycle, in case of failure
to pay the loan on the scheduled date, will be under the supervision or
safekeeping of the TODA and not by the BDC nor shall the ownership and
possession of the tricycle be transferred to another. Part of the Kasunduan in
relation this is reproduced below:
15.1. Kapag ang isang kasapi ay hindi makabigay
ng tatlong karampatang arawang hulog- bayad sa loob ng
isang kinsenas o napapaloob sa isang tseke sa BDC, ang
kanyan tricycle ay hahatakin ng SAMAHAN kasama ang
linya(TODA) at/o ang prangkisa at ito ay pangangasiwaan
ng SAMAHAN upang ang arawang kita nito ay tuwirang
gagamitin ng SAMAHAN para sa darating na arawang
hulog bayad ng kasaping nagkasala
15.2. Ang nahatak na tricycle ay mananatili sa
pangangasiwa ng SAMAHAN hanggat hindi lubos na
nababayaran ang nagging pagkukulang sa SAMAHAN
15.3. Ang tricycle na mula sa inutang sa BDC ay
hindi maaaring isanla, ibenta o ilipat ng pagmamayari
hanggat hind pa lubusang nababayaran ang utang at
pananagutan sa BDC

As can be seen from the Kasunduan, the ownership of the tricycle in

case of default in payment shall not be transferred but will only be at the
supervision of the TODA itself until the payment has been made. Failure to
pay the loaned amount does not transfers the ownership of the tricycle to the
TODA neither to BDC. BDC, therefore, through its representative, cannot in
any way consider itself an owner of the tricycle despite the failure to pay the
required amount.
However, assuming arguendo that there is a stipulation that BDC may
appropriate for itself the mortgage tricycle in case of failure to complete
payment, the same will be invalid because Article 2088 prohibits pactum
commissorium. It provides that:
The creditor cannot appropriate for himself the things given by way of
pledge or mortgage, or dispose them. Any stipulation to the contrary is null and
void.
The Supreme Court, in Spouses FERNANDO and ANGELINA EDRALIN vs
PHILIPPINE VETERANS BANK G.R. No. 168523 March 9, 2011, defined pactum
commissorium as "a stipulation empowering the creditor to appropriate the
thing given as guaranty for the fulfillment of the obligation in the event the
obligor fails to live up to his undertakings, without further formality, such as
foreclosure proceedings, and a public sale." "The elements of pactum
commissorium, which enable the mortgagee to acquire ownership of the
mortgaged property without the need of any foreclosure proceedings, are: (1)
there should be a property mortgaged by way of security for the payment of the
principal obligation, and (2) there should be a stipulation for automatic
appropriation by the creditor of the thing mortgaged in case of non-payment of
the principal obligation within the stipulated period.
In Luisa Briones Velasquez vs. CA, et al., G.R. No. 144882, February 4,
2005, the Supreme Court once again said that if there is an equitable
mortgage, the creditor cannot consolidate his ownership in case the debtor
does not pay. The proper remedy is to foreclose it. The reason is founded on
Article 2088, NCC which provides that the creditor cannot appropriate the
things given by way of pledge or mortgage, or dispose of them. Any stipulation
to the contrary is null and void.

Applying the principle of pactum commissorium specifically to equitable

mortgages, in Montevergin vs. CA, 112 SCRA 641 (1982) it has been said that
the consolidation of ownership in the person of the mortgagee in equity, merely
upon failure of the mortgagor in equity to pay the obligation, would amount to
a pactum commissorium. It was further articulated that an action for
consolidation of ownership is an inappropriate remedy on the part of the
mortgagee in equity. The only proper remedy is to cause the foreclosure of the
mortgagee in equity. And if the mortgagee in equity desires to obtain title to the
mortgaged property, the mortgagee in equity may buy it at the foreclosure sale.

Since the ownership is not transferred, the 2nd element of the crime of
carnapping was not present in this case since Takad is one of the owner of the
tricycle applying the rule on co-ownership in Article 147 of the Family Code
because he is the lived-in partner of Lacsamana, the one who contracted the
loan and purchased the tricycle. The provision states:

Art. 147. When a man and a woman who are capacitated to marry each
other, live exclusively with each other as husband and wife without the benefit of
marriage or under a void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of them through their
work or industry shall be governed by the rules on co-ownership.

Thus, missing the second element inasmuch as Takad owns the tricycle,
corollary negated is the fourth element which is intent to gain.
IV
THAT THE PROVISIONS OF THE KASUNDUAN WERE NOT FAITHFULLY
COMPLIED WITH

Based on testimony by the representative of BDC, they took the tricycle

from the defendant after the latter defaulted in her payment of the loan without
any authorization from the court to do so. Thus, constituting a violation of
existing laws regarding appropriation of mortgaged properties.
Article 2088 of the New Civil Code of the Philippines prohibits the
execution of a Pactum Commisorium between the parties. It is stated that:
Art.2088 The creditor cannot appropriate
the things given by way of pledge or mortgage,
or dispose of them. Any stipulation to the
contrary shall be null and void.
From the provisions of the Kasunduan itself, it is expressly stipulated
that in case of failure to pay the amount of the loan on the date specified, the
possession of the tricycle shall be transferred to the organization and not to
BDC, as what their representative did. The Kasunduan further prohibits the
transfer of the said motor vehicle to any other entity while the balance is yet to
be paid. Since the said agreement is a contract freely entered into by the
parties, such an agreement constituted the law between the parties and it must
be complied with faithfully and in good faith.
V
LACSAMANA AND TAKAD OWN THE TRICYCLE - SUBJECT OF THE CRIME
Due to failure to pay the August 2003 installment, Zeny Aguirre
requested Lacsamana and Takad to bring the tricycle to the house of
Marasigan. It was pulled out on October 2, 2003 and for more or less than 15
days the subject tricycle was placed on the custody of the treasurer. Aguirre
and Lacsamana had a verbal agreement that they will be given until October
17, 2003 to redeem the said tricycle or else total permanent repossession will
take place. However, Lacsamana again failed to pay.
Article 1484 of the Civil Code explicitly provides:
ART. 1484. In a contract of sale of personal property the price of which is
payable in installments, the vendor may exercise any of the following
remedies:

(1) Exact fulfillment of the obligation, should the vendee fail to pay;
(2) Cancel the sale, should the vendees failure to pay cover two or more
installments;
(3) Foreclose the chattel mortgage or the thing sold, if one has been
constituted, should the vendees failure to pay cover two or more
installments. In this case, he shall have no further action against the
purchaser to recover any unpaid balance of the price. Any agreement to
the contrary shall be void.
The aforequoted provision is clear and simple: should the vendee or
purchaser of a personal property default in the payment of two or more of the
agreed installments, the vendor or seller has the option to avail of any one of
these three remedies either to exact fulfillment by the purchaser of the
obligation, or to cancel the sale, or to foreclose the mortgage on the purchased
personal property, if one was constituted. These remedies have been recognized
as alternative, not cumulative, that the exercise of one would bar the exercise
of the orders. It may also be stated that the established rule is to the effect that
the foreclosure and actual sale of a mortgage chattel bars further recovery by
the vendor of any balance on the purchasers outstanding obligation not so
satisfied by the sale. (Cruz v. FIFC, G.R. No. L-24772. May 27, 1968)
And the reason for this doctrine was aptly stated in the case of Bachrach
Motor Co. v. Millan, thus
"Undoubtedly the principal object of the above amendment was to
remedy the abuses committed in connection with the foreclosure of
chattel mortgages. This amendment prevents mortgagees from
seizing the mortgaged property, buying it at foreclosure sale for a
low price and then bringing suit against the mortgagor for a
 deficiency judgment. The almost invariable result of this procedure
was that the mortgagor found himself minus the property and still
owing practically the full amount of his original indebtedness.
Under this amendment the vendor of personal property, the
purchase price of which is payable in installments, has the right to
cancel the sale or foreclose the mortgage if one has been given on
the property. Whichever right the vendor elects he need not return
to the purchaser the amount of the installments already paid, if
there be an agreement to that effect. Furthermore, if the vendor
avails himself of the right to foreclose the mortgage this
amendment prohibits him from bringing an action against the
purchaser for the unpaid balance." (Bachrach Motor Co. v. Millan,
61 Phil. 409)
Initiatively, it is clear that the BDC chooses the first option. It did not
elect to cancel the sale or resort to a foreclosure of the chattel mortgage.
However, the subsequent acts performed by the corporation are wholly
inconsistent with the first remedy. If the first remedy is availed of, the unpaid
seller cannot anymore choose other remedies, unless the first remedy becomes
impossible. BDC should have accepted the payment made by Lacsamana or if
the latter refused to pay, BDC should have filed a complaint before the court
for collection with a prayer for the issuance of a writ of preliminary attachment.
Nevertheless, contrary to Art. 1484, BDC chooses rescission even if specific
performance was not totally impossible. The cancellation of the sale was also
contrary to law. There was no notice of rescission sent and proper action for
rescission filed before the Court.
BDCs act could not have been constituted as a foreclosure of the Chattel
Mortgage since the properties were not sold in a public action, rather the
properties were taken by BDC itself, which is void being contrary to Article
2088 NCC, which prohibits the execution of a Pactum Commisorium between
the parties.

WHEREFORE, defendant Takad respectfully prays the Court to render

judgment:
1. Acquitting the accused and absolving him of all charges for failure to
prove his guilt beyond reasonable doubt.
2. Ordering the plaintiff to pay the defendant moral and exemplary damages
in the amount of P200,000 and attorneys fees in the amount of
P200,000 as well as other damages the Court may deem necessary.